Good morning. My name is Luc Bégin and I will speak to you on behalf of Health Canada in my capacity as senior integrity officer for this organization.
To provide members of this committee with some context, the Health Canada ombudsman, integrity, and resolution office, for which I am the ombudsman and executive director, was created nearly a year ago as a shared service to serve both Health Canada and Public Health Agency of Canada employees coming forward with workplace issues. Prior to February 2016, the senior integrity officer was the chief audit executive.
The launch of this office reflected an innovative decision on the part of senior leaders to implement a best practice and centralize four services, those being ombudsman, informal conflict management, values and ethics, and internal disclosure services. These services are responsible for delivering integrity programs to Health Canada employees at all levels in one mutual, confidential office led by an independent ombudsman as part of a seamless delivery of services for employees through one port of entry.
Under my guidance, the internal disclosure services are responsible for internal disclosure and providing a safe, confidential, and independent mechanism for employees to disclose wrongdoing in the workplace and to seek an opinion about whether a behaviour is in need of intervention. The internal disclosure services also provide advice and information to employees on the act and on the disclosure processes.
Further, it receives and reviews disclosures of alleged wrongdoing and conducts investigations as required. Where the disclosure of a wrongdoing is founded, we report the findings as well as any systemic problems that may give rise to wrongdoings to senior management, along with recommendations for appropriate actions. Reports concluding that wrongdoing was founded are also posted on the Health Canada website. Where the wrongdoing is unfounded, the allegation may otherwise indicate areas or issues to be addressed proactively to prevent escalation.
In my dual role as ombudsman and senior integrity officer, I manage these situations with objectivity and fairness while respecting confidentiality as mandated by the act. I am glad to further explain to the committee how we administer the act by describing the internal measures we currently have in place for the disclosure of wrongdoings and provide a description of the processes and procedures we follow to address them.
Health Canada, my office, and senior management take the application and administration of the act very seriously. We actively work to ensure employees have a safe and confidential mechanism for disclosures that is consistent with the values and ethics of the public sector.
Internally, the policy related to internal disclosure by public servants for Health Canada currently in place outlines the process for disclosing allegations of wrongdoing. It notably specifies that complaints of wrongdoing can be made either to the employee's direct supervisor, to the senior integrity officer, or directly to the Public Sector Integrity Commissioner. It also specifies the roles of the chief executive, the senior integrity officer, managers, and employees.
As a whole, this policy addresses Health Canada's obligations and reflects the department's commitment to implement the requirements of the act. It sets out expectations for Health Canada personnel in implementing the act and presents broad elements of the departmental processes that support the implementation of the act. The employee contacting our office for inquiries or intending to bring forth allegations of wrongdoing will get further details and information about how to proceed to submit their allegation, which documents they need to provide, how allegations are dealt with, and what they can expect.
There is a lot of unknown for the employee coming forward within this process, and fear of retaliation and reprisal is a component to be addressed. My office provides information to employees on all aspects of reprisal protection and all relevant information to help dismiss misconceptions, clarify assumptions, and manage expectations.
To protect confidentiality, reminders are made to everyone involved in the disclosure process to safeguard information pertaining to cases or inquiries. My office takes great care to ensure information is kept confidential by keeping a separate filing system, physical and electronic, and providing a secure email address and a phone, apart from the other services that we offer. These are accessible only to employees dealing with disclosure cases and inquiries in my office.
As far as outreach and awareness activities go, my office continues to promote its services by providing a monthly awareness session to all staff. Internal disclosure services are also presented at every orientation session for new employees as well as being discussed at every values and ethics session, which are, at Health Canada, mandatory for all managers and employees. In addition, all employees, upon nomination, attest that they have read and understood the code of conduct upon signing their letter of employment.
My office attends yearly events and forums involving large numbers of employees to provide awareness and to discuss the process. Furthermore, my office continuously updates the content of its intranet site to make relevant the information to Health Canada employees.
The intranet pages feature information about roles and responsibilities related to how to receive and lodge a disclosure, and to conduct investigations. They also feature resources that may be downloaded, such as brochures on the act, as well as a form for making internal disclosures. They also link to annual reports and Internet sites where other relevant information can be found, such as information found on the Public Sector Integrity Commissioner's website. They also feature links to contact our office through the dedicated email box and toll-free confidential hotline.
It is often not required to formally investigate issues raised with the internal disclosure services under the act, even if the subject matter is of a relevant nature, that are informally addressed and referred.
My office works in close collaboration with internal partners, such as managers and representatives for other employee recourse mechanisms. When allegations do not meet the threshold to warrant the launch of an investigation, or internal disclosure is not the appropriate means of resolution, having a variety of recourse actions or options is considered an asset. It provides employees with access to a wealth of resources to assist them, regardless of the nature of their difficulties.
My office also collaborates with the Public Sector Integrity Commissioner's investigations by playing a liaison role and by notably ensuring that all internal partners are aware of and respect the strict obligations to safeguard the confidentiality of information.
Fear of reprisal, as per the 2014 public service employee survey results, is still prevalent with employees considering or having made allegations of wrongdoing. Health Canada is deeply concerned about this and is committed to correcting this situation and creating an environment where employees are comfortable in coming forward.
My office and its services continuously strive to embody the values of integrity, neutrality, and independence in dealing with allegations of wrongdoing. I strongly believe this supports and emphasizes transparency and accountability.
Health Canada is committed to promoting a culture of strong values and ethics where open communication on issues and concerns can be discussed and dealt with through appropriate recourse channels, including disclosure of wrongdoing, without apprehension of reprisal, to ultimately foster an ethical organizational culture.
Mr. Chairman and members of the committee, thank you for your time.
Thank you very much, Chair.
Thank you, witnesses.
It seems like it's very well-established and institutionalized. I use that word; it's not a negative connotation. You want to have a system in place to receive wrongdoing.
Something that caught my eye and was a concern to me the other day was the on-boarding of new employees into a new culture. Of course, we're hopefully getting young employees coming in, and it's their first time in the workforce. It's all very new, and it's a lot to absorb that there could be some possible wrongdoing and you're on the spot to report it. I was interested in the decision-making tool that is referred to in our briefing notes and is available to employees. It's “Five questions to ask yourself before making a protected disclosure of wrongdoing”.
We could also check the French version.
Already you'll agree with me that the words are like, whoa, what's this? It's trying to be helpful to the employee:
Do you think something is wrong?
Before making a protected disclosure, ask yourself...
What facts or documentation do I have to support [it]?
Does the activity breach any federal, provincial or organizational codes, policies or rules?
It's putting the onus on the employee, who's not sure. I'm thinking, purely based on my experience in corporate life and so on, that it typically is the newer people who will notice something and say, “Hmm, is that right or is that wrong? What's going on here?” I would like to get your feedback. You have 12,000 employees. Talk to us about what kind of work these employees do.
How can you be sure? The machinery is there. I'm not looking for tens of thousands of cases, but it does strike me that typically when you're trying to get at something specific, you need to have a big funnel. You want people to feel comfortable talking about anything that they see. It's actually a positive thing when corrective action is able to be taken. It's not a big deal, like what's listed in the act, but it's something that's worth reporting on, looking at, and talking about.
I will add to what Mr. Bégin was saying. These are ethical situations. It's not black and white; it's zones of grey.
It wouldn't be fair for Luc or me, or anybody in that field to.... It's like a doctor. Yes, you'll be okay.
I will say it in French: it is an obligation of means, not an obligation of results.
What we do, and what I do, is all about the awareness. Luc said this, but at the orientation sessions for new employees Luc even takes time out of his busy schedule and does a presentation, so there is a portion of this but it's just part of the awareness.
To go back to your question, I know all the tools on this one. I think it's very well done and we use it. It's part of the package. It's not just giving a package to employees, but it's having the discussions. Our role is certainly not to give advice, meaning “Yes, you should do it” or “No, you shouldn't do it”. My role, and that of others in my role and Luc's role, is to give out all the information, and then they have to make the decision. We cannot take the onus or the responsibility for that decision. It's the same for someone who would think of making a complaint of any kind.
To summarize, it's giving out all the information, and those questions are very good, in my view, because they make them think. It's not all black or white and something that will go a certain way. Nobody can predict because there is.... Maybe they think in all good faith that their case is very strong, but when it is held up against the evaluation criteria that we follow, maybe it's not as strong, or maybe it is strong. This we cannot know. We haven't yet seen the evidence they will provide, so it's very difficult for us to talk about an outcome. It's the nature of the beast, if you will, to not be able to say for sure, “Yes, you should go, and this is what is going to happen”, because it's case by case.
Okay, I'll get started immediately then.
This motion, discussed on Tuesday, is just moving to have an emergency meeting on the Super Hornets.
I want to preface by acknowledging that we're scheduled to discuss the Public Servants Disclosure Protection Act today, and the reason I'm bringing this motion forward to the committee is that we have new information regarding Boeing and the Super Hornets that we believe substantially changes the conditions in which the made his proposal for a sole-source contract for the interim fleet of the 18 jets.
There is also an aspect of this issue that is touched upon with regard to public service disclosures, which does make this relevant to our current discussion.
Since agreeing to the proposed studies in the committee, numerous major issues have arisen in the three large procurement projects: Phoenix, and we heard more of that today in the news; shipbuilding; and now the Super Hornet acquisition, which this committee has an obligation to study. Each of these severely impacts our country, our economy, and our taxpayers.
We believe there has not been adequate debate in the House on these issues, nor have we resumed the studies of emerging situations past the initial meeting or two on these subjects.
That's why I am proposing today that we further study the procurement details surrounding the government's decision to sole-source 18 Super Hornet jets, given that the impact of this decision would be felt by the Canadian industry, our servicemen and women, and our defence capability for decades to come, or maybe just 12 years, as the minister recently wrote in response to an Order Paper question.
The conversation has been unclear and seemingly silent, so we don't know what the full answer is to the question. The fact is that we shouldn't have to rely—
] to get these issues talked about.
It should be a natural matter of discussion, as our previous government regularly undertook with the F-35.
While the debate was heated at times, it was always open, with regular committee meetings, unanimous emergency studies in various committees, and regular debate in the House on the issue. Rather than taking on a statutory review of legislation as requested by , something we could do at any point in the coming session, we should be focusing on matters of immediate concern.
I have four concrete concerns that underpin the tabling of the motion today, and I hope to garner support from all members of the committee on these.
Issue number one is the sole-source contract. We're all here on the OGGO committee—by choice, it is hoped—because we feel a duty to watch over the disbursement of public funds, to ensure that taxpayer dollars are being allocated fairly and responsibly, and to make sure that the procurement projects are receiving the proper oversight and scrutiny for the sake of public servants, Canadian industry, and in our case, the Canadian Forces.
It's difficult to justify a sole-source contract worth billions of dollars as being fiscally responsible. In response to an Order Paper question we submitted to the questioning the rationale for a sole-source contract, the minister responded that while we wait for new planes to be procured through a lengthy competition process, the government is exploring an interim option to fill the capability gap in the Canadian Armed Forces requirements for defence supplies or services.
On that point I want to comment on Minister Foote's new mandate letter, which says, “I will expect Cabinet committees and individual ministers to: track and report on the progress of our commitments”. It goes on:
We have also committed to set a higher bar for openness and transparency in government. It is time to shine more light on government to ensure it remains focused on the people it serves. Government and its information should be open by default. If we want Canadians to trust their government, we need a government that trusts Canadians....
Our platform guides our government. Over the course of our four-year mandate, I expect us to deliver on all of our commitments.
One of the commitments is to “Work with the Minister of National Defence and the Minister of Innovation, Science and Economic Development to launch an open and transparent competition to replace the CF-18 fighter aircraft, focusing on options that match Canada’s defence needs.”
Obviously, we've been calling for an open and transparent competition, and the response from the government is that there will be one in five years from now. This contradicts the minister's own mandate letter, which says, “Over the course of our four-year mandate”.
We have a mandate letter demanding openness and transparency. We have a mandate letter saying that over the course of a four-year mandate, of which only two and a half years are left, they expect to deliver on the commitments, one of which is an open and transparent competition that will not be for five years. Therefore, the mandate letter that was issued, I think, just two weeks ago already contradicts the government's policies and workings.
Continuing on the capability gap, which we call the credibility gap, the government's justification for allocating billions of dollars on a sole-source contracted basis has been questioned by members of the military, the media, and military and procurement experts inside and outside the government.
As then Liberal House leader, , said in 2010, in response to an earlier procurement of jets, there is a “commitment to ensuring that the men and women of the air force have the aircraft they need, but also to do the missions that this Parliament and that the government asks of them, and not simply pursue a particular aircraft for some ideological reason.”
Again, we have the government course contradicting what their own House leader said back in 2010.
I can go further with a quote from , then Liberal defence critic, who said:
Once the bidders on a contract are evaluated, both in terms of performance requirements and the offsets they are prepared to offer, we are then in a position to select the best aircraft for Canada....
Why are they the best? Why is this the best way of going about it? In one word, it is because it is a competition. By definition, when a competition is held, the best deal is found. Everybody knows that.
I have a couple of other quotes. This is from again, from March, 2012:
...the government has bungled the CF-18 replacement right from the beginning. Will it now do the right thing, which is: first, define a statement of requirements based on our objectives from a defence and foreign policy point of view; second, hold an open and transparent competition; and third, choose the best aircraft based on performance, cost, industrial benefits and, I need to add, availability? In other words, do what the Liberals did 30 years ago when we chose the CF-18.
This one is from May 2012 by —odd, I know. It's hard to find him speaking in the House, but here's a comment:
Mr. Speaker, there are many aspects of the budget I could talk about, and many other aspects I could talk about with regard to the 70-plus pieces of legislation....
There is one issue that kind of eats at a lot of Canadians, and that is the issue of credibility. The Prime Minister and the Minister of National Defence have a talked a great deal about the need to replace the F-18, something the Liberal Party agrees with. There a need to replace the F-18. Where we disagree is with the manner in which that has been done.
There has been a great deal of deception from the government to Canadians. At some point, it said $9 billion was going to be the cost, and we are finding out that the cost is going to be more than double that.
At least that government had discussed costs, as opposed to hiding them, as we have seen with the Super Hornets.
My question to the member is this. How can Canadians believe the numbers the government is purporting to talk about on issues like the deficit, when it has really made a whole mess, and there is evidence to show it misled Canadians on the pricing of the F-35 contract? Why should Canadians believe the budget document is a legitimate document...?
It goes back to our concerns that the Super Hornets haven't been priced and that we've chosen an aircraft before we've even negotiated a price.
This last one is from , recently retired, from May 2012:
The government could have put the F-35 out to tender. In a book coming out today, the former ADM for materiel, Alan Williams, makes a strong case that this F-35 business has been mishandled from day one. He has also indicated that a competitive bidding process would save the taxpayer some billions of dollars.
I'm going to go on about the Super Hornets. It's not a small deal, as we know. These are 18 jets that are going to be flown by our forces, and dismissing this as a matter of “it's only something we're going to do until we get something better” is the wrong course of action. We owe it to Canadians to fully and transparently examine the necessity of the current government's ignoring of the key fairness clause in government contracts regulations.
Issue number two is ministerial responsibility. Earlier, we discussed her mandate letter. One of the main reasons that we, as members, send letters to ministers and move motions calling for emergency meetings on particular topics is that we need answers to questions that only ministers can provide. They are the elected and accountable faces of the departments they lead and the final sign-off for all projects and decisions. For example, we've had six press conferences on the Phoenix pay fiasco, the most recent one just the other day. has been present at exactly zero of them. She's appeared before this committee twice, with only one appearance before a regular meeting; and even then we cannot commit to making any decisions, because she's put her deputy minister in front of the issues.
To date we haven't heard anything from on the sole-source contract. When the previous government was pursuing the F-35 program, our current leader was the Minister of Public Works and Government Services. She regularly appeared before various committees, including this one, to discuss the program.
These jets are going to cost billions of dollars and take years to procure. They're an incredibly complex system, with millions of decisions to be made between two of the largest departments within the Canadian public service. Should anything derail in these discussions, it's up to the same minister who has been silent on shipbuilding, on Phoenix, and now the Super Hornets to take responsibility and explain what went wrong. We're wondering how we can possibly prevent these molehills from becoming mountains if we are not prepared to commit to an adequate oversight and study.
Issue number three is the lack of military experience involved in the manufactured capability gap. Our colleagues on the National Defence portfolio have repeatedly asked who is deciding the capability requirements for the military. Is it the defence staff or the PMO? There's been no response. Then in a November 2016 National Post article we found out that the government has ordered 235 military personnel and public servants to take the details of the fighter jet program to the grave. There are 39 civil servants in Public Works who are forced to sign this agreement, which would permanently bind them to secrecy on the fighter jet capability project.
The former assistant deputy minister of materiel, Alan Williams—the very same Alan Williams whom the Liberals relied heavily on during their calls for a competition for the F-35—has said he's never heard of such agreements. He said, “I've never heard of this type of thing before.... I never required it of my staff. I think if I had, I would have been laughed out of the building.”
The article went on to note that the capability gap—which the blamed on the previous government—has been questioned by a large number of defence sources. In fact, the article notes that earlier in the year, RCAF commander Lieutenant-General Mike Hood said that the CF-18s could fly until 2025 and potentially beyond. Moreover, as the article noted, “In his appearance before the Commons defence committee, Hood didn’t mention anything about a capability gap.”
Past statements from both CDS Vance and the chief of air staff have confirmed that the RCAF has sufficient numbers to meet its domestic and international obligations until 2025. This is the result of the previous government's investments in the CF-18 life extension program.
Given that the current government has deemed it appropriate to circumvent contract regulations on a questionable capability gap, it would be irresponsible for this committee to take the claim at face value, especially with the impact this would have on precedents. It is our duty to ensure that public dollars are being spent appropriately, efficiently, and in the best interests of Canadians. It's difficult to verify that this is the best deal for Canadians if the core tenet of the deal is being questioned and if government workers are under a lifetime ban on speaking about the deal.
We've also discovered that there was a 2014 memo posted on the DND website for over a year about the excess expense of managing two fleets and saying that the capability gap was non-existent. After being told to remove the memo from the website, DND confirmed that the government officials had decided to keep the memo secret. I didn't see how this could possibly be seen as anything but a naked attempt to hide the facts that contradict what the government has been saying.
Rather than openly addressing the concerns expressed by the public and the opposition when confronted by these facts, the government decided to simply declare the memo secret and have it removed from the DND website, something that no previous government, whether ours or Liberal, has ever done before.
Issue number four is the cost to taxpayers. The fact that the RCAF will already be running 18 Super Hornets is seen by many as putting Boeing at a competitive advantage in any future competition. The RCAF will already be set up to train its pilots on the Super Hornet and be geared toward its supply chain in operational requirements. Running a mixed fleet calls for countless unnecessary costs, making it a considerable factor for officials in upcoming competitions.
The government often tells of—
The government often touts the lower immediate price tag of the Super Hornet as a primary reason that it should be sole-sourced and preferred. However, as with most other things on this file, the government has not been clear about what kind of price tag Canadians can expect to pay to fulfill this Liberal campaign promise. Boeing likes to use the old value of $57 million U.S. to buy a Super Hornet; however, Australia recently paid $120 million per plane. The most recent analysis done by Denmark showed that the purchase of fully capable fighter jets was $87 million for an F-35 versus $124 million for an F-18. We recently purchased 40 Super Hornets for a total of $10 billion, or $252 million per plane, well over triple what an F-35 is right now.
Boeing has been lobbying the American government to impose a 20% tax on top of the military sales tax, which would substantially increase the cost of these interim jets. If we're going to get serious about the question of good deals for Canadians, we have to ask why we're willing to buy a plane at double the tax and again why we would commit to a plane before we even start negotiating on price or asking for pricing from any competition.
Coupled with the fact that the Super Hornet is at the end of its life cycle and is basically an obsolete plane right now, I'd like to pose a question. How do these evolving financial realities not change the discussion on whether or not this is the best deal for Canada?
I'm going to quote a retired member of Parliament, because it sums up my argument nicely:
This is obviously costing all of us, members of the Canadian public, the taxpayers, a significant number of dollars.
That is what competition is there for. It is to get the best price, to make sure the Canadian taxpayer is getting value for dollar. This party has talked about value for dollar with regard to this issue from the beginning. That is a responsibility the government has chosen to ignore.
He goes on:
The other reason is to make sure we get the best equipment available to us. Never is this more important than when we are talking about military procurement for our men and women in the air force. We want to make sure they have the best tools available. Again, without an active, open, transparent and fair competition, we do not know that.
Later he says:
It is incumbent upon all parliamentarians to make sure we do get value for dollar. It is incumbent upon all parliamentarians to ensure that the process as outlined in Treasury Board guidelines is followed. If that is not followed, then we cannot be sure that we are getting the best price for Canadian taxpayers, and we clearly are not sure.
Now, that former MP was none other than the veteran Liberal defence critic, the Hon. Bryon Wilfert, from a debate on a sole-source contract in 2010.
Taxpayers have so far been kept in the dark about the true cost of the Super Hornet purchase, about the necessity of a sole-source contract worth billions of dollars, and about the long-term impacts on Canadian industry and the military. It's the committee's responsibility to ensure that the rules of transparency, accountability, and fiscal responsibility are kept.
I hope I have your support for this essential study and I hope my colleagues on the other side vote in favour of this study, and for the sake of transparency, not push this discussion and this vote in camera, once again away from the public.
Thank you, Mr. Chairman.
Honourable members, thank you for the opportunity to appear before you to present my experiences regarding the Public Servants Disclosure Protection Act.
My understanding is that it is in its 11th year and we are now commencing the five-year review. The fact that it has taken so long to do the review, and the short period of time for the review, to me is a strong indicator that there is little interest in protecting civil servants who witness wrongdoing.
Something needs to be done. I deal with these damaged individuals continually because nobody else will. I'm past chair of Canadians for Accountability. We are now the only organization in Canada trying to help whistle-blowers. We have no power. All we have is knowledge and the ability to sympathize and empathize.
In brief, the act completely fails to protect those it's designed to protect or that it says it's going to protect. It's designed to protect senior bureaucrats, not the ordinary public servant. I'm going to give examples of the act and its failure, but I want to give some highlights of the history of the act, because not all of you will be aware of the background history of some of the events that have taken place in these 11 years.
The act came into force on April 15, 2007.
By the way, the gentlemen here can correct me if I misstate anything. I'm not a technical expert. I'm dealing with people.
The Conservative Party promised it would bring in legislation that would enable whistle-blowers to come forward without fear. The act as written is not what was promised. If you give public servants guidance to write an act to protect people exposing wrongdoing done by public servants, the public servants will make certain that they cannot be criticized and that they are protected. As written, the act was flawed right from its beginning.
It's also worth pointing out that it's part of the Federal Accountability Act. In that act, the deputy ministers of departments were designated as accounting officers. They're accountable for ensuring that measures taken to deliver programs are in compliance with policies and procedures and that effective internal controls are in place. However, a fundamental problem with that legal requirement and that act is that there is no consequence if you don't, and what has happened? A good number of them have ignored the law because there's no reason to follow it.
There have now been two Auditors General investigations on this office. The first took place October 2010 and ended with Christiane Ouimet resigning for allegedly intimidating employees and engaging in retaliatory action against them.
An internal whistle-blower blew the whistle on the whistle-blowing office. Madam Ouimet was paid about $500,000 to leave—not a bad payment. Mr. Friday, the present commissioner, was the legal counsel at that time and appeared before this committee and testified he had seen nothing done wrong by her in that office at any time.
The second investigation was done in 2014 as a result of two complaints by external whistle-blowers about the treatment they received from the integrity office. Mr. Mario Dion was then the commissioner, and Mr. Friday had become the deputy commissioner.
To quote from paragraph 54 of the Auditor General’s report of 2014:
On the basis of the information gathered during this investigation, we concluded that the Deputy Commissioner committed a wrongdoing as defined in subsection 8(c) of the PSDPA by grossly mismanaging the oversight of the investigation file.
The Auditor General's report also stated that on the basis of the information gathered during the investigation:
We found that the actions and omissions of PSIC senior managers (the Commissioner and Deputy Commissioner) regarding this file amount to gross mismanagement.
Mr. Dion accepted the findings of the report. It was tabled on April 15, 2014.
This is an admission by the commissioner that either he is completely incompetent or the act is extremely flawed. You can't have it both ways, and I don't happen to believe Mr. Dion was incompetent. I think he was working under an act that caused him to appear to be incompetent. Subsequently, he resigned early and was appointed to a five-year term as chairperson of the Immigration and Refugee Board of Canada.
The third commissioner, and the current one, is Mr. Friday. At best, he has the same problem as Mr. Dion, either the act is extremely flawed or he was guilty of gross mismanagement as reported in the Auditor General's report and as accepted by the commissioner of the integrity office at that time.
Having given you a brief background—I could have given you a lot more depth into things that went on in that office and with that office—I want to give you some actual cases that involve the office. For some, I can use the name, but sometimes I can't due to confidentiality.
The first case I'm going to speak on very briefly is that of Dr. Imme Gerke and Dr. Jacques Drolet, a husband and wife who worked for Health Canada. They were recruited by Health Canada and were involved in global regulatory strategies. What they discovered was an inability to do their job and tremendous resistance when they tried to implement the changes.
They made at least two attempts to get together with PSIC, but unsuccessfully. The end result of their story...? They resigned from Health Canada. They sold their home. They moved to Germany and are very happy, gainfully employed, and accepted as professionals in Germany.
The next case is that of Don Garrett, a contractor in British Columbia. He reported wrongdoing by PSIC in 2011. What should be of concern is that the complaint involved asbestos. It took him years, with no help, to find that the asbestos report existed—though denied by the government—and he had no support from the office.
Another employee who reported wrongdoing was fired in retaliation and went to PSIC for help. What they were told was that they were not a government employee anymore. The act states that reprisal includes termination of the employment of the individual. However, the office told them that they were not a public servant so they couldn't be helped. That was dismissed by the office.
Then there's the case of Sylvie Therrien, who I know is going to be mentioned again. She has spent four years trying to have her case looked at. Why has it taken four years? Because she's been fighting the integrity office for four years. The office that should help her is the office that has been abusing her and fighting her, and she's had to have legal representation. As of January 17, the Court of Appeal stated that the commissioner violated her rights and fairness rights. I'll let David Yazbeck speak more on that.
If a person who wants to report wrongdoing faces retaliation and has to fight the people who would be expected to help, why would they do it?
There are a couple of other ones. I've put down why.... I'm going to conclude because I've been signalled that I have one minute. That's fine.
I'm going to conclude with a direct quote from a whistle-blower who has experience with PSIC. This is a written quote he actually gave me through an email. He said that in every case where an employee has spoken out against wrongdoing in government, he has been the one to be beaten up and has been treated very poorly by the employer and in most cases the employee has not been able to return successfully to his job.
That's the experience of whistle-blowers. Nothing has changed with the new law. Nothing has changed with the Public Servants Disclosure Protection Act. It's just as bad as it ever was, and I end up getting the phone calls and dealing with them after they have tried the office and been turned away.
On that point, I'll make one final point. The worst part of the act is that the burden of proof is on the whistle-blower. If I go to you and tell you there's wrongdoing, my management has all the documents and the ability to vet the documents and clean them up before you even go to me, because the act lets PSIC contact them and say, “In 48 hours, or a reasonable time, we want to go in and look at the documents.” Do you really think those documents aren't cleaned?
On that note, I'll say thank you and I'll pass it to my colleagues.
First of all, I want to thank the committee for the opportunity to testify. People like me have been beating on the doors of Parliament for more than 10 years and asking for the opportunity to explain what's really going on with this law and this agency, and up to now we've been completely blocked.
The last time I was able to address parliamentarians on the subject of this law was in May 2006, before the law came into force, when various NGOs—people like me and Allan—testified that the law was badly written and would fail. As a result of our testimony, the Senate passed 15 substantive amendments to improve the law, one of them dealing with the reverse onus that's been talked about so much. Sadly, all of these were rejected. We're so glad to see the review finally taking place, albeit five years later.
My purpose today is to help the committee understand why this system is failing and what can be done about it. I'll look at the law itself and also touch briefly on the way that it has been administered by successive Integrity Commissioners.
Starting with the law, it's a very complex law and there's a lot to it. What I'm going to do is take a very thin slice through it and take you through the trajectory of what happens to a whistle-blower who approaches PSIC. We'll follow that trajectory.
From the moment a whistle-blower approaches PSIC with a disclosure of wrongdoing, things are likely to go wrong for them, because the very first thing the Integrity Commissioner will do, if he decides in fact to do anything at all, will be to inform the whistle-blower's head of department about what the allegations are. You can imagine that this is quite concerning to that person.
The act claims that the whistle-blower can be protected by strict confidentiality about their identity, but in many cases that's completely bogus. In many cases, only a handful of people have the information that lies behind the allegations. Perhaps the whistle-blower is the only person who's been asking questions about whether something is kosher. Even if that's not the case, departments spare no effort and do everything they possibly can to track down the traitor, the leaker. That's their attitude. There's a very strong likelihood that very quickly the whistle-blower's cover will be blown and they'll be subject to reprisals. That's number one.
Let's say that a whistle-blower still has some confidence in PSIC—they may not—and they go back there, this time with a complaint of reprisal. What happens? You can imagine this person pleading with the entire staff of the commissioner, asking them to please stop these reprisals, and saying that their life in the workplace is now a living hell: they've been isolated, they've been bullied, they've not been given the proper work, they're clearly going to be fired, and they don't know how much longer they can tolerate it. They say, “You told me I was protected, so can you stop this?” Essentially what they're going to learn is that nothing will be done to prevent those reprisals. The management can do essentially what they want to that person, and they just have to sit there and suck it up.
Where's the protection? Well, here's the protection, they're told. We're going to start a process that in all likelihood will take a very long time and that offers the very faint hope that at some point in the future the tribunal will order a remedy for them. The remedy means some kind of compensation for all the damage that's been done to them. That's the protection, but if the whistle-blower asks some questions, they'll discover that no one has ever received a remedy from the tribunal. At this point, they will realize that the promise made to them that they were protected was bogus, and that the life they know and enjoy presently is over and there's no going back.
You can see at this point already that there are serious problems, but let me take you through some of the other steps just so you understand the sheer depth of this.
First of all, nothing happens very quickly now. Although the commissioner has to decide quickly whether to launch an investigation into the reprisals, the actual investigations often take an inordinate length of time. They'll stop and start, and in my opinion, they're very slipshod. We know of one case where it took two years to decide to conclude a simple investigation for reprisal.
The Integrity Commissioner has no powers of investigation for cases of wrongdoing. He has all the powers of the Inquiries Act to compel witnesses and testimony and so on, and to receive documents. For investigations into reprisals he has no special powers. He simply has to go to those accused, the aggressors, and seek their voluntary co-operation. We can see that the investigation itself is likely to be very superficial and take a long time.
If we consider the six or nine months that it might take to conclude the investigation, by this time the whistle-blower's life has dramatically changed, simply due to the elapsed time. The harassment in the workplace has taken a terrible toll on his mental health. He probably has classic PTSD symptoms by now. He has been fired on trumped-up charges, often accused of the exact wrongdoing he's trying to expose. After 20 years of sterling service he's now accused of being incompetent. He has been blacklisted in his chosen profession and is now unemployable.
As you can imagine, he has terrible financial problems as a result of this and is headed towards losing the family home. The stress of all this is unbelievable, which reflects on his family and his loved ones, because they are desperately worried about their future. They do not understand what's going on. They can't understand why they should have to suffer in this way and there's always the suspicion, because they're being told that their loved one is a bad person and telling lies, that he must have done something wrong to deserve being treated in such a horrible way. That's their situation.
Let's say that the commissioner makes a referral to the tribunal. This might sound like good news, but again you begin to see the depth of the problem because in the tribunal, the aggressors, the persons conducting the reprisals, are going to be represented by a team of lawyers paid for by the government, while the whistle-blower has to find the resources to pay his own legal costs.
The strategy of the defence is pretty much always to delay and delay by any means possible. They aim to drag the proceedings out as long as possible, which exhausts the whistle-blower emotionally and financially and destroys the person further in that way.
The real killer is this onus issue that we've talked about, because the whistle-blower's prospects of succeeding before the tribunal are essentially nil. I should say to you that this is such an embarrassment. The reversal on this provision is whistle-blowing 101. It was whistle-blowing 101, 10 or 15 years ago before this law was written and the fact that it would not be in this law is a huge red flag saying there was no intention to ever make this law work.
Faced with the situation and having no understanding of what the tribunal is going to look like, whistle-blowers simply bail out. They're desperate to escape this terrifying process where they know they can't win, and so they settle. Not a single whistle-blower has completed the tribunal process. Not a single one has been ordered a remedy by the tribunal. In not a single case has any sanction been taken against aggressors who ruined this person's life. I want to say more about it. Maybe someone will ask me a question later.
This is only the tip of the iceberg. I'm not going to comment at length on how the law has been administered, but let me say this. For a long time I ran a charity and part of what I did was to run a confidential hotline for whistle-blowers. We gave very minimal help to people. It complemented what Allan's group did. My records show that of the 400-plus whistle-blowers that I had contact with, about 50 of them had dealings with PSIC.
What I learned from their encounters with PSIC would often leave me shaking with anger. I was stunned by the dishonesty, the contempt, and the way they were treated. A previous chair of this committee remarked sometime ago that this was an act not to protect whistle-blowers, but to protect deputy ministers from whistle-blowers. That's exactly the way it is.
I'll end by imploring this committee to dig deeply. Don't just call people from within the bureaucracy, but outsiders who can tell you what's really going on. We've developed a suggested witness list and can explain to you why it's important that you see quite a number of other types of people.
Thank you again for your time and consideration. I look forward to your questions.
First, I just want to give you a little bit of information about me. I'm a labour and human rights lawyer here in Ottawa. A substantial portion of my practice is representing whistle-blowers. I've represented Dr. Shiv Chopra and Dr. Margaret Hayden, Health Canada whistle-blowers; Sylvie Therrien, the EI quota whistle-blower; and Corporal Robert Reid, who blew the whistle about corruption in our mission in Hong Kong.
I've also represented a number of others who have had decisions in the Federal Court and before the tribunal. David has mentioned the track record of the tribunal. I'm doing a case in April called Dunn, which is likely to be the first decision from the tribunal on the merits of an allegation. Yesterday, I was in the Federal Court of Appeal on behalf of Edgar Schmidt, the Department of Justice lawyer who expressed concerns about how the department vets bills before they go to Parliament. I have extensive and practical experience under this act.
I want to start with the preamble to the act. It's something I would urge the committee to consider seriously as you conduct the review. Ask yourselves, is this act working in accordance with the intentions of the preamble? The preamble situates the act of whistle-blowing in the heart of our constitutional democracy. It is essential to the operation of our constitutional democracy. It ensures that governments operate properly, it enables people to expose wrongdoing, and ultimately it assists the public. Ask yourselves—you've heard the stories from my colleagues here, and you'll hear some from me—is that the way the act is running? It's not. It's broken, and it needs to be fixed.
I also note that because of that status, I would hope that the committee does give this a thorough and serious review. If you need any more information from me after this session, I would be happy to provide it. I'd urge you to follow my friend's suggestions regarding other witnesses.
I am going to speak about the reverse onus. Reprisal, in fact, is a subtle, insidious, and difficult thing to prove. It's rare that you can find overt or direct evidence of it, and as my friends have pointed out, there are many opportunities to hide that evidence by the time you get to a tribunal. Institutions and managers, often just inherently, and sometimes even subconsciously, turn against the whistle-blower. If the evidence goes, you're out of luck.
This is not an unusual notion. Reverse onus provisions exist in almost all labour relations legislation in Canada in specific cases. I'll give you an example. If you're organizing a union at a department store and your manager finds out and fires you, you can file a complaint and can allege that the termination was based upon your union activity. When you file that complaint, it's presumed to be true and the employer has to disprove it before the labour board. That process has been operating fine for decades. This is not a radical notion at all. If an employer has a reasonable, justifiable basis for the termination, then they'll win. If they don't, then the griever, in this case the victim of the reprisal, will win.
There's an added bonus to the reverse onus. You all know about how few cases actually get referred to the tribunal. In my view, that's in part because the standard the commissioner's office uses is much too high. If you have a reverse onus, it's going to have the effect of reducing the standard when they're investigating complaints, and therefore, increasing the number of complaints that go to the tribunal.
Next I want to talk about the PSIC investigative process, which is flawed. It lacks thoroughness. I find that they view whistle-blowers with suspicion. Often, it's procedurally unfair. There's a tendency to find ways not to deal with a complaint or dismiss it. They don't have a contextual or a subtle approach, in my view. What's troubling is that we have decades of jurisprudence dealing with the Canadian Human Rights Act process for investigating human rights complaints and referring them to the tribunal. That jurisprudence has set out crystal-clear standards for the process of investigation, yet we continue to have to litigate fairness issues in the Federal Court and the Federal Court of Appeal with this commissioner's office. I've done six or eight cases so far, and there will be more to come.
Let me give you two examples. The first is the El-Helou case. Charbel El-Helou made three allegations of reprisal. The commissioner decided that one was justified and applied to the tribunal. The commissioner dismissed two of them. We ended up setting aside that decision because the commissioner's process was unfair. They didn't actually give us a fair chance to influence his decision. The commissioner started a new investigation as a result of the Federal Court's order.
Even though they had already applied to the tribunal, they decided to look over that one allegation again as part of this new investigation. What they did, over my strenuous objections, was to review all three allegations and then decided there was no basis for all three of them, including the one they had already decided had a basis. Now they're taking the position before the tribunal that they can't support that allegation. That's ridiculous. It's unfathomable that they would take that kind of approach when they did have evidence in the first place.
The other thing is that in the course of their investigation, I made a very lengthy submission regarding why all these allegations should go to the tribunal. Internally, they prepared a scathing analysis of our submissions. It was highly critical of me and the whistle-blower. Did they disclose that to us before they made their decision? No. We only find this after the fact.
The second example is Therrien. Ms. Therrien goes public with concerns about using quotas to achieve savings in the EI plan. She gets suspended, her reliability status is revoked, and she's fired. She files a grievance with respect to all those things. She also files a reprisal complaint and says that each of those actions was an act of reprisal.
The grievance has nothing to do with reprisal. We're not alleging it. There's no evidence called about reprisal, nothing like that. But the commissioner's office looks at this and says, oh, she has a grievance and the grievance refers to these three events as well so we don't have to deal with it. They refuse to deal with it. They even make that decision before I get a chance to make submissions to the commissioner's office.
What we say is that I'm counsel for Therrien before the adjudicator, and we're not talking about reprisal at all there. We take the position that the adjudicator doesn't have jurisdiction to deal with a reprisal. What does the commissioner do with that? They say they don't care. It's mentioned over there and they're not going to deal with it.
This ends up going to the Federal Court of Appeal. As Mr. Cutler pointed out, less than a month ago the Court of Appeal said that's unreasonable. Just because those acts are mentioned in this other process, you can't simply refuse to deal with it. You actually have to look at it. You actually have to ask yourself the question, is reprisal being dealt with in that process?
So they'll have to ask the question again and I'm not certain what the answer will be, frankly.
I will also note that those are just two of many legal battles that have ended up in the Federal Court. The only reason those two people were able to do that was because of their unions. In one case it was the Public Service Alliance of Canada and in the other case it was the Professional Institute of the Public Service of Canada. They've been footing the bill to fix this act and how it's operating. If the two hadn't had union representation, they probably wouldn't have been able to do this.
This leads me to the question of legal fees. The fact that the act allows for legal fees of $1,500, and an extra $1,500 in exceptional circumstances, is novel and good. I welcome that, but that's not nearly enough. If you were to go all the way through the process and actually go to a reprisal hearing that lasted maybe four or five days, you would be paying at least $10,000 or $15,000, and probably more, particularly if you don't have access to somebody who knows the law and is up to speed on it.
That has to change in order to make the system more effective. It doesn't have to be giving them costs; it could also be allowing for costs to be awarded in favour of the complainant if they're successful. That's one mechanism. I would offer this caution: please do not suggest that costs could go to the respondent. If that happens, it will have a huge chilling effect on whistle-blowers, because they'll have to be told that they might actually end up paying money.
My colleagues here have spoken a bit about the impact on whistle-blowers, and I agree with them. I think the committee should know that if somebody comes to me and says they're thinking of disclosing some wrongdoing, I have to tell them certain things. I have to tell them that these events will happen, as Mr. Hutton explained. These are not undocumented. There are plenty of articles, journal articles, including an article in the British Medical Journal, about how whistle-blowers are treated when they blow the whistle.
On top of that, I have to tell them, look, you'll need to go through a very lengthy and a likely unfair and difficult investigation process. If we're successful as a result of that process, you'll have to go a tribunal, where you'll have a lengthy hearing, etc., and you may not even win. To that, a lot of people will think it's ridiculous, and they'd be a fool to disclose this wrongdoing. That takes me back to the preamble again. The whole point of the act is to encourage that person to do that. I have to discourage them as part of my advice to them.
The last thing I want to say, members of the committee, if I can be a little strong and almost emotional here, is that whistle-blowers are heroes. They risk their families, they risk their careers, and they risk financial stability in order to make the operation of government better and therefore improve the lives of Canadians.
The system they've been given for 11 years has been proven to be ineffective. It doesn't work. It needs to be fixed. This committee has a golden opportunity to do that. I would urge you to listen to people like us and do that. This is not only better for whistle-blowers. This is also better for Canadians.